COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys Argued by teleconference
BARBARA JANE SMITH MEMORANDUM OPINION * BY v. Record No. 0491-01-2 JUDGE ROBERT J. HUMPHREYS JULY 23, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY W. Park Lemmond, Jr., Judge Designate
C. David Whaley (Anthony G. Spencer; Morchower, Luxton & Whaley, on briefs), for appellant.
Richard B. Smith, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Barbara J. Smith appeals her convictions for three counts of
assault and one count of brandishing a firearm, after a bench
trial in which she was tried jointly with her husband, Charles
Smith. 1 Smith contends the trial court erred in finding the
evidence sufficient as a matter of law to support the convictions,
and in excluding evidence establishing bias on the part of one of
the complaining witnesses. Smith also argues that two of her
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Further, because this memorandum opinion has no precedential value, we recite only those facts necessary to our holding. 1 See Charles Smith v. Commonwealth, Record #0492-01-2, this day decided. assault convictions and the brandishing conviction violated her
constitutional right against double jeopardy. For the reasons
that follow, we affirm in part and reverse and remand in part.
I. Evidence of Bias
On appeal, Mrs. Smith first argues that the trial court erred
in "exclud[ing] . . . evidence indicating bias of the complaining
witness, [Cameron Gilliam]." We agree.
During Gilliam's testimony, counsel for Smith asked, "Isn't
it true you hired a lawyer to pursue a civil suit against Mrs.
Smith?" The trial court sustained the Commonwealth's objection,
finding it was "not relevant."
As an initial matter, the Commonwealth contends Smith "never
asked to proffer Gilliam's answer to the question" asked
concerning the potential civil suit during trial. However, the
record demonstrates that Smith asked to make the proffer
immediately after the trial court's ruling on the Commonwealth's
objection in this regard and ultimately made it just after the
final ruling, as instructed by the court. 2 We find Smith's
2 After the trial, as he had been instructed to do by the trial court, Smith's attorney made his proffer concerning his cross-examination of Gilliam, stating: I wanted to proffer that to show his bias, his motive to recoup monetary settlement with regard to the lost animals, and his motivation behind his testimony and subsequent prosecution.
I would further proffer that I have personal knowledge that he was contacted by an - 2 - proffer that Gilliam contacted an attorney regarding a civil suit
to be sufficient. 3 Thus, we address the merits of Smith's
argument.
It is a fundamental proposition that great latitude is
allowed on cross-examination, and the general rule is that
anything tending to show bias on the part of the witness may be
drawn out. 4 Indeed, "[t]he right of an accused to cross-examine
prosecution witnesses to show bias or motivation, when not
abused, is absolute." 5 Thus, questions which attempt to show
that a witness is biased and his testimony unreliable because it
is induced by considerations of self-interest are always
relevant. 6 Accordingly, under the facts of this case, we hold
attorney or that he contacted an attorney, rather, with regard to civil actions as that person attorney Herbert Maxey from Buckingham County contacted me specifically in regard to settlement of matters related to personal injuries and loss of the dogs.
3 Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977) ("[I]n the interest of orderly litigation and appellate review, we hold that a unilateral avowal of counsel, if unchallenged, . . . of the testimony expected constitutes a proper proffer . . . ."). 4 Corvin v. Commonwealth, 13 Va. App. 296, 300, 411 S.E.2d 235, 238 (1991). 5 Hewitt v. Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114 (1984). 6 Banks v. Commonwealth, 16 Va. App. 959, 962, 434 S.E.2d 681, 683 (1993). - 3 - the trial court erred in refusing to allow Mrs. Smith's counsel
to question Gilliam regarding the potential civil suit.
Next, we must determine whether the trial court's error in
restricting Mrs. Smith's right to cross-examination was harmless
beyond a reasonable doubt. 7 The correct inquiry in determining
harmless error in cases such as this, "'"is whether, assuming
that the damaging potential of the cross-examination were fully
realized, [we] might nonetheless say that the error was harmless
beyond a reasonable doubt."'" 8 Therefore, our harmless error
analysis is similar to harmless error review in cases of
improperly admitted evidence, where the error is held harmless
if the record contains "overwhelming" evidence of guilt. 9 In
this case, Gilliam's testimony is the "improper" evidence we
evaluate, to determine its effect, if any, on the verdict.
Our analysis of the effect of Gilliam's testimony is guided
by specific factors. In determining whether the trial court's
error in limiting appellant's right to cross-examine Gilliam was
harmless, we evaluate:
"'the importance of [Gilliam's] testimony in the prosecution's case, whether [Gilliam's] testimony was cumulative, the presence or
7 Scott v. Commonwealth, 25 Va. App. 36, 42-43, 486 S.E.2d 120, 123 (1997). 8 Id. (quoting Maynard v. Commonwealth, 11 Va. App. 437, 448, 399 S.E.2d 635, 641 (1990) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986))). 9 Id. - 4 - absence of evidence corroborating or contradicting [Gilliam's] testimony on material points, the extent of cross-examination [of Gilliam] otherwise permitted and, of course, the overall strength of the prosecution's case.'" 10
We find the error was harmless with regard to the
brandishing incident and related assaults by threat of bodily
harm. Indeed, Terry Collins, the other complaining witness,
fully corroborated Gilliam's testimony as to the incident.
However, the only testimony concerning Smith's alleged
physical assault of Gilliam (slapping), was provided by Gilliam
himself. There was no corroboration, and we find that the
evidence was not otherwise "overwhelming" on that charge.
Accordingly, we find the error, as it pertained only to that
conviction, was not harmless beyond a reasonable doubt, and we
reverse the conviction and remand for a new trial if the
Commonwealth be so advised.
II. Sufficiency of the Evidence
Smith next contends the evidence was insufficient as a matter
of law to sustain the remaining convictions for assault and
brandishing of a firearm, as it did not exclude every reasonable
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys Argued by teleconference
BARBARA JANE SMITH MEMORANDUM OPINION * BY v. Record No. 0491-01-2 JUDGE ROBERT J. HUMPHREYS JULY 23, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY W. Park Lemmond, Jr., Judge Designate
C. David Whaley (Anthony G. Spencer; Morchower, Luxton & Whaley, on briefs), for appellant.
Richard B. Smith, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Barbara J. Smith appeals her convictions for three counts of
assault and one count of brandishing a firearm, after a bench
trial in which she was tried jointly with her husband, Charles
Smith. 1 Smith contends the trial court erred in finding the
evidence sufficient as a matter of law to support the convictions,
and in excluding evidence establishing bias on the part of one of
the complaining witnesses. Smith also argues that two of her
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Further, because this memorandum opinion has no precedential value, we recite only those facts necessary to our holding. 1 See Charles Smith v. Commonwealth, Record #0492-01-2, this day decided. assault convictions and the brandishing conviction violated her
constitutional right against double jeopardy. For the reasons
that follow, we affirm in part and reverse and remand in part.
I. Evidence of Bias
On appeal, Mrs. Smith first argues that the trial court erred
in "exclud[ing] . . . evidence indicating bias of the complaining
witness, [Cameron Gilliam]." We agree.
During Gilliam's testimony, counsel for Smith asked, "Isn't
it true you hired a lawyer to pursue a civil suit against Mrs.
Smith?" The trial court sustained the Commonwealth's objection,
finding it was "not relevant."
As an initial matter, the Commonwealth contends Smith "never
asked to proffer Gilliam's answer to the question" asked
concerning the potential civil suit during trial. However, the
record demonstrates that Smith asked to make the proffer
immediately after the trial court's ruling on the Commonwealth's
objection in this regard and ultimately made it just after the
final ruling, as instructed by the court. 2 We find Smith's
2 After the trial, as he had been instructed to do by the trial court, Smith's attorney made his proffer concerning his cross-examination of Gilliam, stating: I wanted to proffer that to show his bias, his motive to recoup monetary settlement with regard to the lost animals, and his motivation behind his testimony and subsequent prosecution.
I would further proffer that I have personal knowledge that he was contacted by an - 2 - proffer that Gilliam contacted an attorney regarding a civil suit
to be sufficient. 3 Thus, we address the merits of Smith's
argument.
It is a fundamental proposition that great latitude is
allowed on cross-examination, and the general rule is that
anything tending to show bias on the part of the witness may be
drawn out. 4 Indeed, "[t]he right of an accused to cross-examine
prosecution witnesses to show bias or motivation, when not
abused, is absolute." 5 Thus, questions which attempt to show
that a witness is biased and his testimony unreliable because it
is induced by considerations of self-interest are always
relevant. 6 Accordingly, under the facts of this case, we hold
attorney or that he contacted an attorney, rather, with regard to civil actions as that person attorney Herbert Maxey from Buckingham County contacted me specifically in regard to settlement of matters related to personal injuries and loss of the dogs.
3 Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977) ("[I]n the interest of orderly litigation and appellate review, we hold that a unilateral avowal of counsel, if unchallenged, . . . of the testimony expected constitutes a proper proffer . . . ."). 4 Corvin v. Commonwealth, 13 Va. App. 296, 300, 411 S.E.2d 235, 238 (1991). 5 Hewitt v. Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114 (1984). 6 Banks v. Commonwealth, 16 Va. App. 959, 962, 434 S.E.2d 681, 683 (1993). - 3 - the trial court erred in refusing to allow Mrs. Smith's counsel
to question Gilliam regarding the potential civil suit.
Next, we must determine whether the trial court's error in
restricting Mrs. Smith's right to cross-examination was harmless
beyond a reasonable doubt. 7 The correct inquiry in determining
harmless error in cases such as this, "'"is whether, assuming
that the damaging potential of the cross-examination were fully
realized, [we] might nonetheless say that the error was harmless
beyond a reasonable doubt."'" 8 Therefore, our harmless error
analysis is similar to harmless error review in cases of
improperly admitted evidence, where the error is held harmless
if the record contains "overwhelming" evidence of guilt. 9 In
this case, Gilliam's testimony is the "improper" evidence we
evaluate, to determine its effect, if any, on the verdict.
Our analysis of the effect of Gilliam's testimony is guided
by specific factors. In determining whether the trial court's
error in limiting appellant's right to cross-examine Gilliam was
harmless, we evaluate:
"'the importance of [Gilliam's] testimony in the prosecution's case, whether [Gilliam's] testimony was cumulative, the presence or
7 Scott v. Commonwealth, 25 Va. App. 36, 42-43, 486 S.E.2d 120, 123 (1997). 8 Id. (quoting Maynard v. Commonwealth, 11 Va. App. 437, 448, 399 S.E.2d 635, 641 (1990) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986))). 9 Id. - 4 - absence of evidence corroborating or contradicting [Gilliam's] testimony on material points, the extent of cross-examination [of Gilliam] otherwise permitted and, of course, the overall strength of the prosecution's case.'" 10
We find the error was harmless with regard to the
brandishing incident and related assaults by threat of bodily
harm. Indeed, Terry Collins, the other complaining witness,
fully corroborated Gilliam's testimony as to the incident.
However, the only testimony concerning Smith's alleged
physical assault of Gilliam (slapping), was provided by Gilliam
himself. There was no corroboration, and we find that the
evidence was not otherwise "overwhelming" on that charge.
Accordingly, we find the error, as it pertained only to that
conviction, was not harmless beyond a reasonable doubt, and we
reverse the conviction and remand for a new trial if the
Commonwealth be so advised.
II. Sufficiency of the Evidence
Smith next contends the evidence was insufficient as a matter
of law to sustain the remaining convictions for assault and
brandishing of a firearm, as it did not exclude every reasonable
hypothesis except that of guilt. We disagree.
When a defendant challenges the sufficiency of the evidence on appeal, the reviewing court must give the judgment of the trial
10 Id. (quoting Williams v. Commonwealth, 4 Va. App. 53, 78-79, 354 S.E.2d 79, 93 (1987) (quoting Van Arsdall, 475 U.S. at 684)). - 5 - court sitting without a jury the same weight as a jury verdict. The appellate court has the duty to examine the evidence that tends to support the conviction and to uphold the conviction unless it is plainly wrong or without evidence to support it. 11
Here, the trial court found the testimony of Gilliam and
Collins to be credible. Indeed, the testimony of the law
enforcement officers who arrived on the scene shortly after these
events occurred, corroborated both Gilliam's and Collins'
depictions of the Smiths' demeanor. "The credibility of the
witnesses and the weight accorded the evidence are matters solely
for the fact finder who has the opportunity to see and hear that
evidence as it is presented."12
Furthermore, contrary to Smith's argument, the reasonable
hypotheses of innocence standard applies only in cases where the
evidence is "wholly circumstantial." 13 This is not the case here.
In fact, most of the evidence in the case against Smith was
direct, not circumstantial. Accordingly, we do not find the
convictions here were plainly wrong or without competent evidence
in support thereof.
11 McCain v. Commonwealth, 261 Va. 483, 492-93, 545 S.E.2d 541, 547 (2001). 12 Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). 13 Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68 (1976). - 6 - III. Double Jeopardy
Smith finally argues that the "testimony of a threat to, slap
of and brandishing at Gilliam established one continuous assault
only. Likewise, the testimony of a threat to and brandishing at
Collins established only one assault." Smith contends that two of
her convictions for assault must therefore be reversed, as they
violate the Double Jeopardy Clause's protection against multiple
punishments for the same offense. 14 As we have reversed the
physical assault conviction involving the alleged slapping of
Gilliam, we consider only the brandishing and the related assault
convictions.
"We have held that a single criminal act can be a violation
of more than one statute." 15
In the single-trial setting, "the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977).
14 The Commonwealth contends Smith failed to raise the specific argument concerning multiple punishments at trial. However, we find that Smith's argument at trial sufficiently explained her contention in this regard. See Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997) ("The laudatory purpose behind Rule 5A:18 . . . is to require that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary."). 15 Cartwright v. Commonwealth, 223 Va. 368, 371, 288 S.E.2d 491, 493 (1982).
- 7 - * * * * * * *
The question resolves itself, therefore, into one of legislative intent where the issue is whether "the Legislative Branch" has provided that two offenses may be punished cumulatively. In divining this intent, the test to be applied is "whether each [offense] requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). And, in applying this test, the two offenses are to be examined in the abstract, rather than with reference to the facts of the particular case under review. 16
"Assault" is defined at common law as:
[A]n attempt or offer, with force and violence, to do some bodily hurt to another, whether from wantonness or malice, by means calculated to produce the end if carried into execution; as by striking at him with a stick or other weapon, or without a weapon, though he be not struck, or even by raising up the arm or a cane in a menacing manner, by throwing a bottle of glass with an intent to strike, by levelling a gun at another within a distance from which, supposing it to be loaded, the contents might injure, or any similar act accompanied with circumstances denoting an intention coupled with a present ability, of using actual violence against the person of another. 17
Conversely, "[t]o gain a conviction under Code § 18.2-282, the
Commonwealth must prove two elements: '(1) pointing or
16 Blythe v. Commonwealth, 222 Va. 722, 725-26, 284 S.E.2d 796, 797-98 (1981). 17 Bennett v. Commonwealth, 35 Va. App. 442, 449, 546 S.E.2d 209, 212 (2001). - 8 - brandishing a firearm, and (2) doing so in such a manner as to
reasonably induce fear in the mind of a victim.'" 18
Thus, each offense here contains one element that the other
does not. Assault requires a specific intent on the part of the
actor to inflict, or threaten to inflict, some corporal hurt
upon another that is reasonably calculated to inspire fear or
apprehension in the victim. 19 However, an assault may occur
without actual fear on the part of the victim.
On the other hand, brandishing, in addition to requiring
the use of a firearm, requires the existence of reasonable fear
in the mind of a victim. However, it does not require an intent
on the part of the actor to inspire fear in the mind of the
victim.
Accordingly, we find no double jeopardy violation in Mrs.
Smith's conviction for two separate assaults consisting of a
threat of bodily harm, directed at two separate individuals, and
her conviction for the separate and distinct offense of
brandishing.
18 Diffendal v. Commonwealth, 8 Va. App. 417, 420, 382 S.E.2d 24, 25 (1989) (quoting Kelsoe v. Commonwealth, 226 Va. 197, 198, 308 S.E.2d 104, 104 (1983)). 19 Jones v. Commonwealth, 184 Va. 679, 681, 36 S.E.2d 571, 572 (1946). - 9 - We therefore affirm the remaining convictions for assault
involving the threat of bodily harm, and brandishing of a
firearm.
Affirmed in part and reversed and remanded in part.
- 10 -